7.  The applicant is a limited liability company with its seat in Vienna. It is the owner and publisher of the weekly magazine Profil.
8.  In November 1998 Profil published a one-page article with the heading “Antifa-Terror!” and subtitled “A political book. Member of the European Parliament for the Austrian Freedom Party (Freiheitliche Partei Österreichs), Mr S., settles his account with anti-fascists in a new book.”
The book at issue with the title “The Antifa-Complex” was described as being not only critical but rather provocative. The book review criticised Mr S. for settling accounts with “post-war leftists” (“Nachkriegs-Linke”), while
“S. did not find similar critical words as regards Jörg Haider. He even pardoned his [Haider's] belittlement of the concentration camps as 'punishment camps'. Haider's opponents had also employed nazi-terminology by using the term 'extermination camp'.
(German)
Über Haider findet S. übrigens an keiner Stelle seines Buches ähnlich kritische Worte. Sogar dessen Verharmlosung der Konzentrationslager als 'Straflager' sieht er ihm nach. Haiders Gegner hätten mit dem Ausdruck 'Vernichtungslager' ebenfalls NS-Begriffe verwendet.”
9.  On 29 December 1998 Mr Haider filed a compensation claim under the Media Act (Mediengesetz) with the Wiener Neustadt Regional Court (Landesgericht) against the applicant company.
10.  On 28 July 1999 the Regional Court ordered the applicant company to pay 50,000 Austrian schillings (ATS – approximately 3,633 euros) as compensation to Mr Haider and to publish its judgment. Moreover it ordered the forfeiture of the issue of Profil, pursuant to the relevant provisions of the Media Act. It also ordered the applicant to reimburse Mr Haider's procedural costs.
11.  The court noted in its reasoning that the above passage gave the impression to an average reader of Profil that Jörg Haider had played down the extent of crimes committed in concentration camps when using the term punishment camps, and that he had thereby infringed Sections 3g and 3h of the National Socialism Prohibition Act (Verbotsgesetz). The reproach of a criminal offence was capable of slurring Mr Haider or of lowering him in public esteem and therefore constituted defamation (üble Nachrede) under Section 111 of the Criminal Code (Strafgesetzbuch). Therefore Section 6 of the Media Act applied in the applicant company's case. It was unnecessary to determine whether the impugned passage constituted a value judgment or a statement of fact, as the applicant company had failed to give any factual background for its reproach. While it was true that Mr Haider, in 1995, had used the term at issue in a speech before the Parliament in plenary session and subsequently in an interview with the magazine Profil, he had done so, on both occasions, when also speaking about the near extinction of an ethnic minority in these camps. Therefore the reproach against Mr Haider was not justified.
12.  The applicant company appealed, arguing that the term “belittlement” was a value judgment based on sufficient facts. Mr Haider had used the word “punishment camp” in his speech in Parliament. It was not excessive either, since the term at issue implied that persons detained in such camps had committed a crime, for which they were punished. As a politician, Mr Haider exposed himself to close scrutiny by journalists and the public and, thus, had to display a higher degree of tolerance against criticism for his choice of words.
13.  On 15 December 1999 the Vienna Court of Appeal (Oberlandesgericht) dismissed the appeal, confirming the Regional Court's judgment. It ordered the applicant to reimburse Mr Haider's procedural costs, including those of the appeal proceedings.
The court noted that the article had grossly disregarded the context in which the impugned term had been used by Haider. In particular, he had added that an ethnic minority had almost been made extinct in these camps. The readers, four years after Haider's speech in Parliament and his interview with Profil in 1995, would not remember its contents, and, if at all, would remember only such abbreviated information as was indicated in the article. Correct reporting would have been even more necessary in order to enable readers to form their own opinion.
14.  On 20 December 1999 the applicant published the operative part of the Regional Court's judgment of 28 July 1999 together with its essential reasoning in an issue of Profil.